U.S. v. Bosch

• Decision Date: 14 September 1990
• Docket Number: No. 88-5134,88-5134
• Citation: 914 F.2d 1239
• Parties: 31 Fed. R. Evid. Serv. 6 UNITED STATES of America, Plaintiff-Appellee, v. George Humberto BOSCH, Sr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1239

914 F.2d 1239

31 Fed. R. Evid. Serv. 6

UNITED STATES of America, Plaintiff-Appellee, v. George Humberto BOSCH, Sr., Defendant-Appellant.

No. 88-5134.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 7, 1990.

Decided Sept. 14, 1990.

Christopher A. Brancart, Brancart and Brancart, Orange, Cal., for defendant-appellant.

John S. Gordon, Asst. U.S. Atty., Deputy Chief, Major Narcotics Section, Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before HUG, BOOCHEVER and BEEZER, Circuit Judges.

BOOCHEVER, Circuit Judge:

George Humberto Bosch, Sr., appeals his conviction for conspiracy to aid and abet possession with intent to distribute and distribution of cocaine, conspiracy to defraud the United States, and unlawful transfer and possession of counterfeit social security cards. We reverse Bosch's conviction on the count of conspiracy to defraud the United States but affirm the remaining convictions.

FACTS AND PROCEDURAL HISTORY

Bosch owned and operated an investigative and Hispanic services agency in Glendale, California. Through this business, Bosch became involved with Colombian drug dealers. Evidence indicated that in the course of the association, he provided false business paperwork documenting a fictitious cattle sale in South America so that the dealers could launder the proceeds of their drug sales through one of the dealers' corporate bank accounts; helped to arrange a drug sale; helped arrange and provide documentation for a marriage for one of the dealers for immigration purposes; and, with his son, provided apartments and storage for the dealers and their cocaine, money, and guns.

Two of the dealers were arrested and agreed to plead guilty to lesser charges in exchange for their cooperation with the government in its investigation of cocaine trafficking and money laundering. One of the dealers introduced Bosch to an Internal Revenue Service (IRS) undercover agent, identifying the agent as a cocaine dealer, and asked Bosch to provide them with false identification papers and false cattle sale documentation so that they could launder drug money. Bosch agreed, provided the paperwork, and he and his son assisted the undercover agent to launder what they believed were drug sale proceeds.

On August 20, 1986, Bosch and his son were indicted on charges of conspiracy to possess and to aid and abet possession of cocaine with intent to distribute in violation of 21 U.S.C. Secs. 841 and 846, and 18 U.S.C. Sec. 2; conspiracy to defraud the United States in violation of 18 U.S.C. Sec. 371; possession of counterfeit social security cards in violation of 42 U.S.C. Sec. 408(g); possession and aiding and abetting possession with intent to transfer and transfer of false social security cards in violation of 18 U.S.C. Secs. 2 and 1028(a)(2) and (3); and possession of an identification document with intent that such document be used to defraud the United States in violation of 18 U.S.C. Sec. 1028(a)(4). On November 21, 1986, following a jury trial, Bosch was convicted on all charges. On April 21, 1988, the district court sentenced him to a term of imprisonment of seven years on each of the cocaine conspiracy charges, to be served concurrently, and four years on the remaining charges, to be served concurrently collectively and with the sentence on the cocaine conspiracy charges, with credit for time served. Bosch was further ordered to pay a mandatory special assessment fee of $500 pursuant to 18 U.S.C. Sec. 3013(a). Bosch filed his notice of appeal the same day.

On appeal, Bosch argues that his conviction should be reversed due to insufficient evidence, erroneously admitted testimony, and ineffective assistance of counsel.

DISCUSSION

I. Sufficiency of the Evidence

A. Conspiracy to Aid and Abet

In assessing the sufficiency of the evidence, we must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). Count two of the indictment charged Bosch and his son with conspiracy to aid and abet the possession of cocaine with intent to distribute, and conspiracy to aid and abet the distribution of cocaine in violation of 21 U.S.C. Secs. 841 and 846 and 18 U.S.C. Sec. 2. Bosch argues that because the undercover IRS agent never possessed or distributed cocaine, no crime of possession or distribution of cocaine occurred. A defendant cannot be convicted of aiding and abetting absent proof that the underlying offense was committed. United States v. Powell, 806 F.2d 1421, 1424 (9th Cir.1986). Therefore, according to Bosch, it was legally impossible for the Boschs to conspire to aid and abet a nonexistent offense.

We have "rejected the doctrine of legal impossibility as a defense to a charge of conspiracy." United States v. Everett, 692 F.2d 596, 599 (9th Cir.1982), cert. denied, 460 U.S. 1051, 103 S.Ct. 1498, 75 L.Ed.2d 930 (1983). In United States v. Rueter, 536 F.2d 296 (9th Cir.1976), the defendants were convicted of conspiring to buy drugs from an undercover Drug Enforcement Administration (DEA) agent. The defendants argued "that because DEA policy is against actually providing drugs to buyers in deals such as this one, they could not have possessed it and are entitled to an absolute defense of impossibility." Id. at 298. We disagreed, however, finding that the "defendants were convicted of conspiring to violate the law. The conspiracy was complete when the conspirators had agreed to commit the offense and one of them had done an overt act in furtherance of the agreement. The accomplishment of the conspiracy's goal is immaterial to the crime." Id. Similarly here, Bosch agreed to aid and abet the possession and distribution of cocaine and overtly acted in furtherance of that agreement. Sufficient evidence existed to support his conspiracy conviction.

B. Defrauding the United States

Count three of the indictment charged Bosch and his son with conspiracy to defraud the United States by filing false Currency Transaction Reports (CTRs) and impeding the IRS in collecting taxes and enforcing currency transaction reporting requirements, in violation of 18 U.S.C. Secs. 2 and 371, 31 U.S.C. Secs. 5313 and 5322, and We agree. In Murphy, we interpreted the form then used to document currency transactions, and held "that it does not clearly impose a duty to disclose the persons who delivered to [the defendant] the deposited currency." Id. at 1430. The CTR form Bosch provides in his reply brief (revised in December 1982 and thus presumably the form used for the transaction at issue here, which occurred in 1983) contains the same language on which we based our opinion in Murphy. The government attempts to distinguish Murphy by arguing that the indictment against Bosch alleged as one of the objects of the conspiracy the impairment of the IRS' function of collecting income taxes, while "[t]he indictment against Murphy, by contrast, allege[d] no scheme to deprive the government of tax revenue." Id. at 1432. As we observed in Murphy, however,

31 C.F.R. Secs. 103.22 and 103.25. Specifically, the indictments charged that Bosch and his co-conspirators laundered drug sale proceeds using CTRs which did not reveal the true source of the money. Bosch argues that in United States v. Murphy, 809 F.2d 1427 (9th Cir.1987), this court held that there was no duty to report the source of money on CTRs. If there was no duty to report that information, he contends, the evidence was insufficient to convict him of defrauding the United States by failing to provide it.

even if the indictment encompassed the defendants' total money-laundering activities, it would still fail to allege a crime under 18 U.S.C. Sec. 371. Money laundering may be socially destructive, but it is not a crime. Illegal acts in a money-laundering scheme can be crimes. We upheld the Moran defendant's conviction in part because he advised his co-participants in the laundering scheme to report only a small fraction of their illegal profits on their income tax returns. That is a classic case of conspiring to defraud the United States.

Id. (citation omitted) (referring to United States v. Moran, 759 F.2d 777 (9th Cir.1985), cert. denied, 474 U.S. 1102, 106 S.Ct. 885, 88 L.Ed.2d 920 (1986)). The government failed to present evidence of any illegal acts within the money laundering scheme involved here. The only overt acts in furtherance of the conspiracy charged in count three of the indictment and proven at trial are failing to identify the source of the laundered money on the CTR form and money laundering activities. The government points to no evidence of a failure to pay taxes because of the fictitious cattle transaction. The evidence thus fails to support a charge of conspiracy to defraud the United States. Murphy, 809 F.2d at 1431-32. Bosch's conviction on count three of the indictment, therefore, is not supported by sufficient evidence and must be reversed.

II. Government Witness Testimony

Garry Newbrough, a special agent with the IRS, testified on behalf of the government at trial as an expert summary witness. Bosch claims that the district court abused its discretion by allowing Newbrough to testify beyond his expertise, to testify on the law, and to testify on the issue of Bosch's guilt or innocence. "The decision to admit expert testimony is committed to the discretion of the court and will not be disturbed unless manifestly erroneous." United States v. Kinsey, 843 F.2d 383, 388 (9th Cir.), cert. denied, 487 U.S. 1223, 108 S.Ct. 2882, 101 L.Ed.2d 916 (1988). Bosch's trial counsel failed to object to Newbrough's testimony. We find, however, that even if there had been an objection, the trial court did not abuse...